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29 July 2016

The California Department of Toxic Substances Control will accept comments through 29 August and will hold a hearing on that same date on a proposal to designate children’s foam-padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate (TDCPP) or tris(2-chloroethyl) phosphate (TCEP) as a priority product under the Safer Consumer Products regulations. The regulations define a priority product as a consumer product that contains one or more chemicals that have a hazard trait that can harm people or the environment. Designation of these items as a priority product would impose certain reporting requirements as well as more stringent conditions on manufacturers, importers, assemblers and retailers of subject merchandise.

Children’s foam-padded sleeping products are defined in the proposal as products designed for children, toddlers, babies or infants to nap or sleep on that incorporate polyurethane foam mats, pads or pillows that contain the flame retardants TDCPP or TCEP. This proposed definition includes the following sub-products: nap mats, soft-sided portable cribs, play pens, play yards, infant travel beds, portable infant sleepers, bassinets, nap cots, infant sleep positioners, bedside sleepers, co-sleepers, and baby or toddler foam pillows.

DTSC indicates that the direct benefit of this proposed regulation would be decreased exposure to TDCPP and TCEP in children’s foam-padded sleeping products to children, families and childcare givers. Reducing exposure to these flame retardants will lessen the potential for people to experience adverse health effects such as cancer, reproductive toxicity, developmental toxicity and neurotoxicity. The agency observes that flame retardant-free foam is widely available, costs less, and has the same functional use as foam made with flame retardants. Additionally, children’s foam-padded sleeping products are not required to meet fire safety standards. Because there are no barriers to the use of flame retardant-free foam in these products, DTSC anticipates that manufacturers will switch to flame retardant-free foam rather than completing an alternatives analysis.

DTSC considered the possibility of listing TDCPP and TCEP in all flexible polyurethane foam as a priority product under the regulations but dismissed that option due to potential conflicts with existing state, federal and international regulatory requirements for flame retardants for a broad range of products. The proposed priority product designation was narrowed to focus on children’s sleeping products because there are no regulatory requirements to include flame retardants in these products.

The Safer Consumer Products regulations require responsible entities (manufacturers, importers, assemblers and retailers) to notify DTSC when their product is listed as a priority product, and DTSC will post that information on its Web site. Manufacturers or other responsible entities of products listed as priority products will be required to perform an “alternatives analysis” for the product and the chemicals of concern in that product to determine how best to limit exposures or the level of adverse public health and environmental impacts posed by the chemicals of concern. DTSC will also have to identify and require implementation of regulatory responses to protect public health and/or the environment and maximise the use of acceptable and feasible alternatives of least concern.

DTSC has the authority to require regulatory responses for a priority product (if the manufacturer decides to retain the priority product) or for an alternative product selected to replace the priority product. This may include ordering the removal or replacement of the chemical of concern in the product or the removal of the product from the California marketplace.

DTSC will only impose new regulatory requirements on product manufacturers if it finalises the draft list by adopting regulations. There are two other products currently under consideration for priority product designation: (1) paint and varnish strippers and surface cleaners containing methylene chloride, and (2) spray polyurethane foam systems containing unreacted methylene diphenyl diicocyanates.

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